[ v18 p282 ]
The decision of the Authority follows:
18 FLRA No. 35 NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND GODDARD SPACE FLIGHT CENTER Respondents and GODDARD ENGINEERS, SCIENTISTS AND TECHNICIANS ASSOCIATION Charging Party Case No. 3-CA-20509 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision with supporting brief, and Respondent Goddard Space Flight Center (Goddard) filed an opposition to the General Counsel's exceptions; Respondent National Aeronautics and Space Administration (NASA) filed cross-exceptions and an opposition to the General Counsel's exceptions; and the Office of Personnel Management (OPM), as amicus curiae, /1/ filed an opposition, and memorandum in support of opposition, to exceptions of the General Counsel. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings and conclusions, and recommendation that the complaint must be dismissed, for the reasons set forth below. As more fully set forth in the attached Judge's Decision, the essential facts giving rise to the complaint are as follows: Goddard Engineers, Scientists and Technicians Association (the Union) was certified on February 25, 1981, as the exclusive representative of a unit of all professional engineers and scientists at the Goddard Space Flight Center, Greenbelt, Maryland. At all material times, the Union continued to be the certified exclusive representative of these employees. However, there was no collective bargaining agreement covering employees in the above-described unit. Some time in 1980, OPM revised its regulations pertaining to agency grievance procedures (5 C.F.R. Part 771). Pursuant to such revisions, NASA revised its grievance procedure, incorporated the revision in a new handbook, and sent advance copies to its installations which were available for all employees on June 22, 1981. Although NASA instructed its field installations that the revised procedures were applicable to Agency grievances filed after June 15, 1981, all installations had the authority to delay implementation of Agency-wide regulations pending completion of all bargaining obligations established under the Statute. In December 1981, the handbooks containing the revised Agency grievance procedure were inadvertently distributed by a mail service contractor to all employees at Goddard, despite the fact that Goddard did not issue any implementing instructions for the revised procedure. When the Union inquired about the applicability and distribution of the revised Agency grievance procedure, Goddard informed the Union that: (1) the distribution of the handbooks was accomplished by the Goddard mail service contractor without the authorization or knowledge of any Goddard official; (2) no grievances had been filed by any Goddard employee since June 15, 1981; and (3) Goddard had no authority to negotiate the substance of the revision, but would negotiate the impact and procedures for implementation of the revised Agency grievance procedure. The Union responded that it would deal with its concerns about any grievance procedure applicable to members of the bargaining unit during negotiations for a collective bargaining agreement. Thereafter, on March 16, 1982, the Union and Goddard commenced bargaining, but as of the date of the hearing herein no final agreement had been reached, although the parties initialed-off on a grievance/arbitration procedure clause in the proposed collective bargaining agreement. In finding that Goddard had not violated section 7116(a)(1) and (5) of the Statute as alleged in the complaint, the Judge determined that changes in an agency grievance procedure do not involve conditions of employment which are negotiable under the Statute. Without passing upon the Judge's determination in this regard, the Authority concludes that the complaint against both NASA and Goddard should be dismissed, for the following reasons. With regard to NASA, the record establishes that no collective bargaining relationship existed at the agency level between NASA and the Union inasmuch as the level of exclusive recognition is for a unit of professional employees at Goddard. Accordingly, NASA had no obligation to notify and bargain with the Union before promulgating directives concerning revisions to its Agency grievance procedure. See Department of the Army and Department of Defense, 15 FLRA No. 142 (1984); Defense Contract Administration Services Region, Boston, Massachusetts, 15 FLRA No. 143 (1984). Further, the record supports the Judge's finding that NASA did not prevent Goddard from fulfilling whatever bargaining obligation might have existed with respect to the changes in question. Accordingly, the complaint must be dismissed as to Respondent NASA. /2/ Harry Diamond Laboratories and Department of the Army and Department of Defense, 15 FLRA No. 43 (1984). With regard to Respondent Goddard, the Authority notes that copies of the revised grievance procedure were inadvertently distributed to Goddard employees by a mail service contractor without the knowledge of or authorization by Goddard's Labor Relations Officer and therefore without notice to the Union. Upon learning of the revised Agency grievance procedure, the Union asked Goddard about the applicability and distribution thereof but never specifically asked for negotiations. Indeed, in response to Goddard's contention that the substance of such revisions would not be negotiable under the Statute, the Union stated that it would deal with its concerns about any grievance procedure applicable to unit members during negotiations for a collective bargaining agreement. As noted above, the Union and Goddard subsequently reached agreement with respect to a grievance procedure applicable to unit employees. Under these circumstances, the Authority concludes that the Union never specifically requested negotiations concerning revisions in the Agency grievance procedure and, even if a general request arguably had been made, the Union immediately thereafter clearly and unmistakably withdrew it. Accordingly, the complaint alleging that Goddard had failed and refused to notify and bargain with the Union concerning revisions in the Agency grievance procedure must be dismissed. See Internal Revenue Service (District, Region, National Office Unit), 14 FLRA 698, 700 (1984); United States Department of Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA 623, 624 (1982). ORDER IT IS ORDERED that the complaint in Case No. 3-CA-20509 be, and it hereby is, dismissed. Issued, Washington, D.C., May 24, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GODDARD SPACE FLIGHT CENTER, Respondents and GODDARD ENGINEERS, SCIENTISTS AND TECHNICIANS ASSOCIATION, Charging Party OFFICE OF PERSONNEL MANAGEMENT, Amicus Curiae /3/ Case No. 3-CA-20509 Richard L.Dunn, Esquire For the National Aeronautics and Space Administration Lawrence F. Watson, Esquire For Goddard Space Flight Center Donna DiTullio, Esquire For the General Counsel Mr. Frederick G. Schamann George C. Lacy, Esquire For the Charging Party Eugene N. Scallan, Esquire For the Office of Personnel Management Before: LOUIS SCALZO, Administrative Law Judge DECISION Statement of the Case This case arose as an unfair labor practice proceeding under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter called "the Statute), and the Rules and Regulations issued thereunder. The complaint alleges that on or about June 15, 1981, the National Aeronautics and Space Administration (NASA), revised its agency grievance procedure and sent it to Goddard Space Flight Center (GSFC or Goddard) /4/ for distribution to GSFC employees; that on or about June 15, 1981, GSFC implemented the revised agency grievance procedure received from NASA; and that GSFC did not notify the Goddard Engineers, Scientists and Technicians Association (Charging Party or Union) of the revised agency grievance procedure until December of 1981. Based on the foregoing it was alleged that NASA violated Sections 7116(a)(1) and (5) of the Statute by preventing GSFC from fulfilling its obligation to bargain with the Union prior to implementation of the revised agency grievance procedure; and that GSFC violated Sections 7116(a)(1) and (5) of the Statute by implementing the revised agency grievance procedure without first providing the Union with adequate notice, and an opportunity to negotiate the substance of the revision, procedures which management would observe, and appropriate arrangements for employees adversely affected. Counsel representing NASA, GSFC, and the Office of Personnel Management (OPM) argue that the Statute imposes no obligation to bargain concerning an agency grievance procedure. Counsel representing NASA and GSFC contend further that, under the circumstances presented, any existing statutory obligation to bargain was in fact fulfilled by NASA and GSFC. Lastly, NASA argues that it was not properly joined as a party to the proceeding. The parties were represented by counsel during the hearing and were afforded full opportunity to be heard. Based upon the entire record herein, /5/ including the stipulation of facts, stipulated exhibits, and briefs filed by the parties, I make the following findings of fact, conclusions and recommendations. Findings of Fact The following stipulations of fact, entered into the record as a portion of Jt. Exh. 1, are accepted as true: 1. The charge herein was filed by the Union on April 14, 1982 (Jt. Exh. 1(a)) and a copy thereof was served on Respondent Goddard, by certified mail, on April 16, 1982 (Jt. Exh. 2). Receipt of the charge is herein acknowledged by Respondent Goddard. 2. The charge herein was not served upon Respondent NASA. Neither Mr. Grant, Director, Personnel Programs Division, nor any authorized person at NASA Headquarters, was served a copy of the charge in this case. Neither he, nor any authorized person at NASA Headquarters, was contacted or given an opportunity to present the views of Respondent NASA during pendency of this matter prior to the issuance of the Complaint and Notice of Hearing. 3. The Regional Director of the Third Region, Federal Labor Relations Authority (herein called the Authority) by decision dated June 30, 1982, declined to issue a complaint in this matter (Jt. Exh. 3). 4. By letter dated July 29, 1982, the Union appealed the Regional Director's determination (Jt. Exh. 4). By letter dated November 29, 1982 the Assistant General Counsel for Appeals of the Authority, remanded the case to the Regional Director for issuance of a complaint (Jt. Exh. 5). 5. Upon the aforementioned charge, the Acting General Counsel of the Authority, on behalf of the Authority, by the Regional Director of the Third Region, issued a Complaint and Notice of Hearing dated January 20, 1983. True copies were served by certified mail upon Respondent NASA, Respondent Goddard, and the Union (Jt. Exh. 6). Receipt of the complaint is hereby acknowledged by Respondent NASA. Subsequently, Respondents NASA and Goddard served Answers upon the Union and the General Counsel of the Authority (Jt. Exhs. 7 and 8). 6. At all times material herein, the Union is, and has been, a labor organization within the meaning of Section 7103(a)(4) of the Statute. 7. (a) At all times material herein, Respondent NASA is, and has been, an agency within the meaning of Section 7103(a)(3) of the Statute. 7. (b) At all times material herein, Respondent Goddard is, and has been, an activity under NASA within the meaning of Section 2421.4 of the Rules and Regulations of the Authority. 8. At all times material herein, Mr. Carl E. Grant has held the position of Director, Personnel Programs Division and has been and is now a supervisor or management official within the meaning of Section 7103(a)(10) and (11) of the Statute and an agent of Respondent NASA at its Washington, D.C. location. Mr. Grant reports to the NASA Associate Administrator for Management who in turn reports directly to the Administrator and Deputy Administrator of NASA. The objective of Mr. Grant's position is to provide for planning, direction and evaluation of the Agency Personnel Management Program. In his position he has responsibility and authority, to develop, administer and evaluate agency-wide personnel management policies, programs, and practices in various areas, including labor-management relations and employee relations. His office prescribes and publishes policies, procedures, and regulations on personnel management and related matters subject to applicable laws, regulations, and conditions or limitations prescribed by higher authority. 9. GSFC is a NASA field installation. The Director, GSFC, the highest official assigned there, reports to the NASA Associate Administrator for Space Science and Applications, who in turn reports directly to the Administrator and Deputy Administrator of NASA. The Director, GSFC, is authorized to, and is responsible for, providing executive leadership and overall direction and management of GSFC and its assigned programs and activities. 10. Mr. John Ferguson is the Labor Relations Officer for Respondent Goddard at its Greenbelt, Maryland facility, and as such is a supervisor or management official within the meaning of Section 7103(a)(10) and (11) of the Statute. Mr. Ferguson has occupied this position since October 18, 1981, at GSFC. As labor relations officer, Mr. Ferguson operates under controlling policies and directives of higher authorities. In the area of personnel management, NASA labor relations officers are subject to policies established by Mr. Grant's office. Mr. Grant's position does not authorize him to direct or administer the operational personnel functions and activities at GSFC. John Ferguson goes not work for him or any of his subordinates, nor is he subject to their supervision or control. 11. At all times material herein, Respondent GSFC has recognized the Union as the exclusive collective bargaining representative for employees in the following unit appropriate for collective bargaining: Included: All professional engineers and scientists classified in NASA Class Code 200 and Code 700 employed by NASA, GSFC, Greenbelt, Maryland. Excluded: All non-professional employees; management officials; supervisors, employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7); and temporary employees with appointments of less than 180 days. The Union was certified as the exclusive representative for the above-described unit on February 25, 1981. 12. In 1980, OPM issued a revised Part 771 of its regulations relating to agency administrative grievance procedure. 5 C.F.R.Part 771. The OPM directive required federal agencies including NASA to develop an agency grievance procedure consistent with specified criteria. An agency grievance procedure is subject to OPM review for conformance with Part 711. The OPM directive required that the agency grievance procedure be published and that copies be made available to employees. 13. Mr. Grant directed that a grievance system conforming with Part 771 of OPM regulations be prepared. After a lengthy drafting, review and coordination process, a final version of the agency grievance procedure was completed. This document, NASA Handbook (NHB) 3771.2B, NASA Grievance System (Jt. Exh. 9), was submitted to the printers. The preface to NHB 3771.2B contained a statement that all grievances initiated on or after June 15, 1981, would be subject to its provisions and that its effective date was June 15, 1981. In fact, NHB 3771.2B was still in printing on June 15, 1981. On June 22, 1982, Mr. Grant transmitted by mail an advance copy of NHB 3771.2B to Personnel Officers and Employee Relations Officers at the various NASA field centers, including Respondent Goddard. At the same time he transmitted an advance copy of the new Federal Personnel Manual, Chapter 771. The preface of NHB 3771.2B stated that it should be used in conjunction with 5 C.F.R.Part 771 and FPM Chapter 771. FPM Chapter 771 was officially issued by OPM pursuant to FPM letter 771-9, dated July 1, 1981. The finalized copy of NHB 3771.2B was sent to Respondent Goddard from the printers in the latter part of July 1981. 14. The revised agency grievance procedure described above in paragraph 13 cancelled the previous agency grievance procedure dated April 9, 1975 (Jt. Exh. 10). 15. The revised agency grievance procedure described in paragraph 13 above, allowed activities, including Respondent Goddard to issue their own instruction for implementation of the procedure. 16. Respondent Goddard has not issued any implementing instructions for the revised grievance procedure. 17. NASA regulations (NMI 3711.10A) (Jt. Exh. 11), provide that each NASA installation (including Respondent Goddard) has the authority to administer its labor relations program. This includes the authority of such institutions, including Goddard, to delay implementation of NASA-wide regulations where necessary to comply with bargaining obligations of Title VII, Civil Service Reform Act. 18. NHB 3771.2B, in Section 102, (Jt. Exh. 9), entitled "Responsibility for Implementation," places responsibility on field Center Personnel Directors "for coordinating and administering the NASA Grievance System and for providing necessary information to employees, supervisors and other management officials." Furthermore, the preface notes that installations may issue implementing instructions. As a practical matter, the earliest date a field center could have implemented the changed provisions of the grievance system would have been some date after June 22, 1981, when the advance copies of both NHB 3771.2B and FPM Chapter 771 were sent to field center personnel officers. Field centers are authorized to delay implementation of agency-wide directives to fulfill their obligation to bargain, if any. 19. NHB 3771.2B (Jt. Exh. 9) did not contain detailed guidance for fact finders. This was contained in NASA FPM supplement dated July 10, 1981 (Jt. Exh. 12). 20. Neither in NHB 3771.2B (Jt. Exh. 9) or elsewhere did Mr. Grant require that copies of NHB 3771.2B be distributed to employees. NHB 3771.2B requires that copies be distributed at branch level at all NASA organizations and be made available to employees. The decision to distribute, and the timing of a distribution of copies of the handbook to individual employees is a matter not covered by NHB 3771.2B. A sufficient number of copies were printed for all employees, but the Headquarters requirement was to make them available, not necessarily to distribute them to each individual. 21. Neither in NHB 3771.2B (Jt. Exh. 9) nor elsewhere did Mr. Grant issue any direction concerning how NHB 3771.2B would be implemented with regard to labor organizations or collective bargaining where a field center and an exclusive bargaining representative had no negotiated grievance procedure. The only such guidance to field centers was contained in FPM Chapter 771, which is issued upon the authority of OPM. NASA has no control over OPM. 22. (a) During the latter part of December 1981 all employees of Respondent Goddard received through the internal GSFC mail system, a copy of the revised agency grievance procedure described in paragraph 13. 22. (b) Respondent Goddard did not notify the Union prior to distributing the revised agency grievance procedure in December 1981. 23. On a date uncertain after December 23, 1981, Mr. Frederick G. Schamann, President of the Union, contacted Mr. John Ferguson, Labor Relations Officer for Respondent Goddard to inquire about the applicability and distribution of the revised agency grievance procedure. 24. In subsequent conversations between Messrs. Schamann and Ferguson (dates uncertain), the following took place: (a) Mr. Ferguson notified Mr. Schamann that the NASA Grievance System Employee Handbook (Jt. Exh. 9) was distributed to all Goddard employees by a Goddard mail service contractor without Mr. Ferguson's knowledge during the latter part of December 1981. (b) Mr. Ferguson stated that only impact and procedures for implementation of the revised agency grievance procedure would be negotiable under Title VII of the Civil Service Reform Act prior to implementation of the procedure; that the substance of the agency grievance procedure would not be negotiable; and that the authority to negotiate such substance did not exist. (c) Mr. Ferguson notified Mr. Schamann that no grievances had been filed or processed since the June 15, 1981 revision date of the agency grievance procedure. (d) Mr. Ferguson requested that Mr. Schamann submit any Union proposals on the revised agency grievance procedure to Mr. Ferguson. (e) Mr. Schamann stated that the Union would deal with its concerns about any grievance procedure applicable to unit members during negotiations for a collective bargaining agreement. (f) The Union has not submitted proposals on a revised agency grievance procedure. 25. Prior to the discussion between Messrs. Ferguson and Schamann described in paragraph 23 above, Mr. Schamann informed Mr. Ferguson that the Union was drafting proposals for submission to Respondent Goddard with a request to bargain for a collective bargaining agreement between the Union and Respondent Goddard. 26. By letter dated February 23, 1982, co-signed by Mr. Richard Persons and Mr. George D. Mistretta of the Union, a demand was made upon Respondent Goddard to bargain over a collective bargaining agreement (Jt. Exh. 13). collective bargaining agreement (Jt. Exh. 13). 27. On March 16, 1982, the Union submitted its proposals for bargaining to Respondent Goddard, and included in Article 16, a proposal entitled "Grievance Procedure." 28. During April 1982 Respondent Goddard and the Union began negotiations over their first basic collective bargaining agreement. No final agreement has been reached to date. 29. On September 1, 1982, the Union and Respondent Goddard initialled Article 16, as agreed upon by both parties in the collective bargaining process. To date, Respondent Goddard and the Union do not have a negotiated grievance procedure in effect. 30. On January 30, 1983 the first grievance was filed by a bargaining unit member under the revised agency grievance procedure. On February 10, 1983, Respondent Goddard issued its final decision denying the grievance. 31. By entering into this Stipulation and by being referred to herein as "Respondent" NASA, Respondent NASA does not concede that it has been properly joined as a party to this proceeding. Discussion and Conclusions A threshold question posed for resolution relates to the issue of whether NASA was properly joined as a party to this proceeding. The complaint identified NASA as a "Respondent" and as an "agency" within the meaning of Section 7103(a)(3) of the Statute. GSFC is also identified in the complaint as a "Respondent," and as an "activity" within the meaning of Section 2421.4 of the Rules and Regulations, 5 C.F.R. 2421.4. Both NASA and GSFC are linked to alleged unfair labor practices through factual representations based on administrative action allegedly taken by NASA and GSFC in connection with issuance of the revised agency grievance procedure. In fact, counsel representing NASA acknowledged at the hearing that NASA could be found guilty of an unfair labor practice in this proceeding if it was shown that NASA interfered with the bargaining relationship which existed between the Union and GSFC (Tr. 14). It is well settled that higher agency management may, on an agency theory, be held accountable for the actions of lower level managers even in cases where the higher agency level is not specifically identified as a Respondent. Department of Health and Human Services, Social Security Administration, Office of Program Operations and Field Operations, Sutter District Office, San Francisco, California, 5 FLRA No. 63 (1981). Similarly, higher agency management may be found culpable in an unfair labor practice proceeding if higher agency management is found to have participated in, or to have been responsible for, mandating administrative action deemed to be violative of Section 7116(a) of the Statute. Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, and Office of the Secretary, Department of the Interior, Washington, D.C., 9 FLRA No. 46, 9 FLRA 385 (1982); Department of the Treasury, Internal Revenue Service, Detroit, Michigan, 9 FLRA No. 54, 9 FLRA 441 (1982); Department of Health and Human Services, Social Security Administration, Region VI, and Department of Health and Human Services, Social Security Administration, Galveston Texas District, 10 FLRA No. 9, 10 FLRA 26 (1982); Departments of the Army and the Air Force National Guard Bureau, and Montana Air National Guard, 10 FLRA No. 96, 10 FLRA 553 (1982). In this case the complaint provided NASA with notice of NASA's alleged involvement. The parties stipulated that copies of the complaint were served on NASA and GSFC as Respondents. Accordingly, it is concluded that NASA's contention that it was improperly joined as a Respondent is without merit. /6/ The record disclosed that 5 C.F.R.Part 771, entitled "Agency Administrative Grievance System" formed the basis for NASA's revision and reissuance of the NASA agency grievance procedure. /7/ These provisions are reiterated and amplified in Federal Personnel Manual Chapter 771, Subchapters 1, 2, and 3. Part 771 sets forth the requirement that each agency falling within the purview of Part 771, establish an agency administrative grievance procedure. The provisions of Part 771 were applicable to NASA (Stipulation 12, Jt. Exh. 1; 5 C.F.R. 771.203). Section 771.204(a) of Title 5 mandates that agency grievance procedure established under Part 771 "shall cover all nonbargaining unit employees" of agencies covered by Part 771. Section 771.204(b) provides that covered agencies "may extend the coverage of (Part 771) to bargaining unit employees consistent with the provisions of 5 U.S.C. 7121 . . . ." /8/ Section 771.205 generally describes matters which must be covered by Part 771 agency grievance procedures, and Section 771.206(c) outlines numerous matters which must be excluded. Section 771.301 requires covered agencies to "establish and administer an agency grievance system in accordance with criteria in Sec. 771.302 . . . ." Criteria set forth in Section 771.302 is provided to "govern the establishment and administration of an agency grievance system . . . ." Specific obligations imposed on grievants using the system are reflected in Section 771.303. Section 771.304 provides for oversight review of agency grievance procedures by OPM, and for appropriate corrective action. This Section reflects the following language: The Office of Personnel Management shall review from time to time each agency administrative grievance system developed under this part to determine whether the administrative grievance system meets the requirements of this part. The Office shall require corrective action to bring a system which fails to meet the requirements into conformity. Agency grievance systems are not designed to displace negotiated grievance procedures. Following the negotiation and effectuation of a negotiated grievance procedure, it becomes, by reason of the provisions of Section 7121(a)(1) of the Statute, the exclusive procedure for resolving bargaining unit grievances which fall within its coverage. The scope of the duty to bargain under Section 7117(a)(1) of the Statute /9/ extends to conditions of employment, i.e., personnel policies, practices and matters affecting working conditions of employees in a unit of exclusive recognition unless the matters proposed for bargaining are inconsistent with Federal law or Government-wide rule and regulation. National Treasury Employees Union, and Department of the Treasury, Bureau of Public Debt, 3 FLRA No. 119, 3 FLRA 769 (1980); National Treasury Employees Union and NTEU Chapter 70, and Department of the Treasury, Internal Revenue Service, Atlanta, Georgia, 8 FLRA No. 8, 8 FLRA No. 37 (1982); National Federation of Federal Employees, Local 1497, and Department of the Air Force, Lowry Air Force Base, Colorado, 9 FLRA No. 20, 9 FLRA 151 (1982); International Brotherhood of Electrical Workers, Local 280, AFL-CIO-CLC, and Department of the Army, U.S. Corps of Engineers, Nashville, Tennessee, 10 FLRA No. 43, 10 FLRA No. 222 (1982). It is clear that 5 C.F.R.Part 771, and correlative provisions in FPM Chapter 771, may be classified as Government-wide rules and regulations within the meaning of Section 7117(a)(1) of the Statute and relevant Authority decisions. National Treasury Employees Union, and Department of the Treasury, Bureau of Public Debt, supra; Professional Air Traffic Controllers Organization, AFL-CIO, and Department of Transportation, Federal Aviation Administration, 4 FLRA No. 36 (1980); National Federation of Federal Employees, Local 1497, and Department of the Air Force, Lowry Air Force Base, Colorado, supra; International Brotherhood of Electrical Workers, Local 280, AFL-CIO-CLC, and Department of the Army, U.S. Corps of Engineers, Nashville, Tennessee, supra. Here, the complaint is based upon an alleged failure "to provide the Union with adequate notice and an opportunity to negotiate the substance and impact and procedures for implementation of (NASA's) . . . revised (agency) grievance procedure . . . ." The imposition of such a requirement would necessarily be inconsistent with the provisions of 5 C.F.R.Part 771, and FPM Chapter 771. That is, the position of the General Counsel would, if sustained, operate to utilize the collective bargaining process for the purpose of developing agency grievance procedures, instead of the methodology provided in Government-wide rules and regulations promulgated specifically for this purpose. In this context it is noted that the imposition of a bargaining obligation would not be at all consistent with FPM Chapter 771, Subchapter 2-5b(1), which mandates that "bargaining unit employees have the same rights as non-bargaining unit employees until the agency and the exclusive representative negotiate a grievance procedure pursuant to 5 U.S.C. 7121." Imposing a bargaining requirement in this case would be an intrusion into administrative procedures relating to non-bargaining unit employees, and would frustrate the purpose and scheme underlying 5 C.F.R.Part 771, and FPM Chapter 771. Any change in agency grievance procedure generated through bargaining would necessarily alter the rights of non-bargaining unit employees as well. As noted, FPM 771, Subchapter 2-5b(1) specifically requires that bargaining unit employees have the same rights as non-bargaining unit employees until establishment of a negotiated grievance procedure. The extension of bargaining to this factual situation would effectively eliminate agency grievance procedures of the type envisioned by Government-wide rules and regulations, and would substitute a negotiated "agency" grievance procedure in place thereof. /10/ In summary, the bargaining obligation which the complaint seeks to impose is inconsistent with the regulatory pattern reflected in 5 C.F.R.Part 771, and FPM Chapter 771. Since the provisions of Section 7117(a)(1) of the Statute do not operate to require bargaining in these circumstances, the complaint should be dismissed in its entirety. Apart from the foregoing, other case law authority points to the absence of a legal basis for the complaint. In American Federation of Government Employees, AFL-CIO, Local 2782, 6 FLRA No. 56, 6 FLRA 314 (1981); and National Federation of Federal Employees, Local 15, 9 FLRA No. 56, 9 FLRA 478 (1982), the Authority held that OPM and agency regulations may limit the scope of agency grievance procedures. These authorities distinguish agency grievance procedures from negotiated grievance procedures fashioned under the provisions of Section 7121 of the Statute. In the latter case, a negotiated grievance procedure extends to all matters which, under the provisions of law, would be covered unless the parties agree to narrower coverage through collective bargaining. It follows from these two cases that changes in agency grievance procedure may be made without bargaining. The distinction in the two grievance systems was also recognized under the Executive Order. In Office of Economic Opportunity, Region V, Chicago, Illinois, A/SLMR No. 334, 3 A/SLMR 668 (1973), the Assistant Secretary held that the failure of an agency to process a grievance through an agency grievance procedure does not give rise to an unfair labor practice in the absence of discriminatory motivation. /11/ The Assistant Secretary noted: On the other hand, where, as here, the grievance procedure which allegedly has been violated by the agency involved, is a procedure established by the agency itself rather than through the process of bilateral negotiations, I find that different considerations apply. Thus, an agency grievance procedure does not result from any rights accorded to individual employees or to labor organizations under the Order. Moreover, such a procedure is applicable to all employees of an agency not covered by a negotiated grievance procedure, regardless of whether or not they are included in exclusively recognized bargaining units. Under these circumstances, I find that, even assuming that an agency improperly fails to apply the provisions of its own grievance procedure, such a failure, standing alone, cannot be said to interfere with rights assured under the Order and thereby be violative of Section 19(a)(1). (Footnote omitted.) Based on the foregoing, and noting the Administrative Law Judge's finding, which I adopt, that the evidence does not establish that the Respondent's conduct herein was motivated by anti-union considerations, I find that the Respondent's failure to process the Complainants' grievances under the former's grievance procedure did not constitute a violation of Section 19(a)(1) of the Order. In light of the conclusions outlined, it is necessary to address other issues raised by the parties. /12/ It is recommended that the Authority issue the following Order pursuant to 5 C.F.R. 2423.29. ORDER IT IS HEREBY ORDERED, that the complaint in Case No. 3-CA-20509, be, and it hereby is, dismissed. Louis Scalzo Administrative Law Judge Dated: July 15, 1983 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ OPM was granted permission to participate in this proceeding as amicus curiae pursuant to section 2429.9 of the Authority's Rules and Regulations. /2/ In so concluding, it is necessary to pass upon the Judge's findings with regard to whether NASA was properly joined as a Respondent herein. /3/ Pursuant to Sections 2423.19(q), 2423.19(t), and 2429.9 of the Rules and Regulations, 5 C.F.R. 2423.19(q), 2423.19(t), and 2429.9, the Office of Personnel Management was granted permission to participate in this proceeding as amicus curiae. /4/ Although NASA and GSFC were identified in the complaint as a single Respondent, it is quite clear from the allegations of the complaint and the opening statement made by counsel representing the General Counsel, that conduct allegedly pursued separately by NASA and GSFC, comprises the basis of the complaint. The role alleged to have been played by each was recognized in a prehearing determination that NASA was properly named as a Respondent in the complaint (G.C. Exh. 1(k)). NASA and GSFC filed separate answers and post-hearing briefs. They were separately represented at the hearing, and were otherwise treated as separate Respondents by opposing counsel. Accordingly, they will be referred to herein as individual Respondents. /5/ Under the authority provided in Section 2423.19(r) of the Rules and Regulations, 5 C.F.R. 2423.19(r), the following corrections are made in the hearing transcript: Cover Page-- change "4-CA-20279" to "3-CA-20509"; Page 2, line 23-- add "Respondent Exhibit 1-Affidavit, 15, 20"; Page 3, line 7-- change "3-CA-25059" to "3-CA-20509." /6/ Counsel representing NASA also asserted that NASA was not clearly identified as a Respondent in the charge, and endeavors to derive benefit from the fact that the charge initiating this proceeding was served only on GSFC; and further that NASA was not provided with an opportunity to respond to the charge. However, a charge is not a pleading and does not require the specificity of a pleading. It merely serves to initiate an investigation to determine whether a complaint should be filed. Defense Logistics Agency, 5 FLRA No.21 (1981); Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA No. 65, 9 FLRA 543 (1982). Allegations may be included in a complaint even though not included in the charge as long as such bear a relationship to the charge and are closely related to events providing the basis for the charge. NLRB v. Kohler Company, 220 F.2d 3 (7th Cir. 1955); Texas Industries Inc. v. NLRB, 336 F.2d 128 (5th Cir. 1964); Bureau of Land Management, Richfield District Office, Case No. 7-CA-247 (OALJ-81-086). Here the complaint was served in accordance with Authority rules and regulations, and was otherwise issued in accordance therewith. Facets of the complaint which pertain to NASA's alleged involvement are very closely related to allegations set forth in the charge with respect to the activities of GSFC, a NASA field installation. Thus allegations pertaining to NASA were properly included in the complaint, and NASA was appropriately identified as a Respondent. /7/ 5 C.F.R. Secs. 771.201-771.304 (1980). /8/ Federal Personnel Manual, Chapter 771, Subchapter 2-5b(1) provides in pertinent part: However, bargaining unit employees have the same rights as non-bargaining unit employees until the agency and the exclusive representative negotiate a grievance procedure pursuant to 5 U.S.C. 7121, and the negotiated procedure becomes operative. /9/ Section 7117(a)(1) of the Statute provides: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. /10/ It may also be argued that this result is specifically prohibited by Section 7114(a)(5)(B) of the Statute. This Section provides in part: (5) The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude an employee from-- . . . . (B) exercising grievance . . . rights established by law, rule, or regulation . . . . If a bargaining obligation exists in this case, then NASA employees would in effect be precluded from "exercising grievance . . . rights established by . . . regulation . . . ." This could result in the denial of employee rights provided by Section 7114(a)(5)(B), and to unfair labor practices based upon denial of employee rights accorded by the Statute. /11/ The Assistant Secretary's holding was affirmed by the Federal Labor Relations Council in FLRC No. 74A-3 (1984), 2 FLRC 119. See also United States Navy, Naval Air Station, (North Island), San Diego, California, A/SLMR No. 422, 4 A/SLMR 527 (1974); National Labor Relations Board, Region 17, and National Labor Relations Board, A/SLMR No. 670, 6 A/SLMR 325 (1976), affirmed FLRC No. 76A-93 (1976), 4 FLRC 658; Department of the Treasury, Internal Revenue Service, Brookhaven Service Center, A/SLMR No. 859, 7 A/SLMR 532 (1977), remanded on other grounds FLRC 77A-40 and 77A-92 (1978), 6 FLRC 310. /12/ However, it is noted that counsel representing General Counsel placed heavy reliance upon the Authority's decision in Department of the Treasury, Internal Revenue Service, Detroit, Michigan, 9 FLRA No. 54, 9 FLRA 437 (1982). It is clear that the factual picture presented in the cited case is distinguishable from that posed herein.